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ACLU-DE appeals two information request denials in an attempt to reach more incarcerated individuals

Delaware Public Media

The ACLU of Delaware is appealing two Freedom of Information Act (FOIA) request denials from the Delaware Department of Correction (DOC).

Late last year, the ACLU filed two FOIA requests with DOC. The first sought information needed to contact elderly incarcerated individuals that would allow groups specializing in elder care to help them navigate health concerns.

The second sought information needed to contact eligible incarcerated voters so they can receive information about registration and voting dates and deadlines.

Both requests were denied by DOC and upheld by the Attorney General’s Office.

Regarding elderly incarcerated individuals, Chief Deputy Attorney General Daniel Logan attests any agency other than the State Bureau of Identification — with limited exceptions for law enforcement — cannot disclose criminal history record information consisting of identifiable descriptions.

As for information on eligible incarcerated voters, the AG’s office reiterates DOC’s claim that it does not keep records in a manner that would provide accurate information regarding voter eligibility.

DOC provided an affidavit from its Deputy Chief of Planning, Research, and Reentry Damaris Kelly, who attests she is intimately familiar with the DOC’s electronic records database and the current system “is not equipped with a designated search function that could produce the above-requested information” and “any report generated would require manual verification for accuracy, often by cross-referencing with the criminal records database of other agencies like [the Delaware Criminal Justice Information System].”

Logan affirms FOIA does not require a public body to create programming or compile information from different sources to create a new record in response to a request, and therefore concluded DOC did not violate FOIA.

“Really what the attorney general did, in our view, was apply very narrow FOIA exemptions that exist in the statute and applied them too broadly to deny access to the kind of information that Delaware citizens should be entitled to," ACLU of Delaware’s Cozen Voting Rights Fellow Andrew Bernstein said.

Bernstein says denying this information and keeping the ACLU from reaching incarcerated individuals goes against the nature of democracy.

“Incarcerated individuals should have the right to be connected to organizations that advocate for their basic rights. So that's one of the core reasons that we brought the lawsuit [forward], and then a second one is in practice right now in Delaware, the state has the ability to incarcerate people and make them unreachable," Bernstein said. "Our democracy is stronger when everyone participates. That was our initial interest for bringing the FOIA for eligible incarcerated voter information forward, and when it comes to elderly incarcerated individuals, they face particular challenges that, if they were able to be connected with organizations, could be really beneficial for their well-being."

Bernstein explains these types of appeals are rare, therefore there’s not much of an established procedure, but he expects it to play out over the course of several months.

Before residing in Dover, Delaware, Sarah Petrowich moved around the country with her family, spending eight years in Fairbanks, Alaska, 10 years in Carbondale, Illinois and four years in Indianapolis, Indiana. She graduated from the University of Missouri in 2023 with a dual degree in Journalism and Political Science.
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